providing for circuit courts as courts of rec- | proving a valid offset to plaintiff's demand, ord and of general jurisdiction. Dodge v. Coffin, 15 Kan. 277. Giving to the record of the circuit court of Jackson county its full effect, it shows that the judgment relied upon as an offset to the plaintiff's demand is not a judgment of that court at all. The recitation is as follows: "Be it remembered that on the 5th day of June, 1908, there was filed in the office of the clerk of the cir cuit court of Jackson county, Mo., at Kansas City, the following transcript from the justice court of J. W. White, to wit: etc."

On the trial in question the time when the moon set on a given night became relevant. The state introduced in evidence an almanac which stated that its calculations were given in solar time. Held, it was not essential to the admissibility of the evidence that it be accompanied The defendant having stopped short of by testimony explaining the difference between

solar and standard time; the matter being one of common knowledge.

[Ed. Note.-For other cases, see Criminal Law, Dec. Dig. § 304.*]

5. HOMICIDE (§ 338*)-APPEAL-HARMLESS ERROR-IMMATERIAL CONTROVERSY.

means that if a person assault another under such circumstances that, should death ensue, the crime would be manslaughter at the common law, he shall be punished in the prescribed way. [Ed. Note. For other cases, see Homicide, Dec. Dig. 351.*]

10. HOMICIDE (§ 81*)-ASSAULT WITH INTENT TO COMMIT MANSLAUGHTER.

If a person assault another with a deadly weapon, in heat of blood, upon reasonable provocation, without malice and without legal justification or excuse, but with intent to kill, he may be convicted of assault with intent to commit manslaughter, under section 41 of the Crimes Act (Gen. St. 1909, § 2529).

[Ed. Note.-For other cases, see Homicide, Dec. Dig. § 84.*]

In the course of his relations with the defendant's wife the person assaulted told her of trouble the defendant had had with another woman, and that the defendant had paid money to fix it up. This conversation was included in the confession made to the defendant by his wife, and was narrated by her while on the witness stand as a witness in his behalf. The defendant proceeded to air the incident referred to before the jury, produced a witness who gave the details of the settlement with the woman, and testified himself that he had not been guilty of adultery. The state in rebuttal produced evidence that the defendant had committed adultery with the woman, and that she did not understand the written terms of the settlement she made with the defendant. Held, the controversy thus introduced into the case by the defendant was wholly foreign to the issues on trial, and that any errors committed in its investiga-section 41 of that act.

tion are immaterial.

[Ed. Note. For other cases, see Homicide, Dec. Dig. § 338.*1

6. CRIMINAL LAW (§ 486*)-EXPERT EVIDENCE -SUFFICIENCY OF FOUNDATION.

A medical expert heard the defendant's testimony, and was asked to give an opinion respecting defendant's sanity, "based wholly upon his testimony." Held, the question sufficiently indicated that the testimony was to be accepted as true, and so made the foundation of the expert's opinion.

[Ed. Note. For other cases, see Criminal Law, Dec. Dig. § 486.*]

7. HOMICIDE ($ 32*)

VOLUNTARY MANSLAUGHTER-CONSTRUCTION OF STATUTE. Section 27 of the Crimes Act (Gen. St. 1909, § 2515), which provides that "every other killing of a human being, by the act, procure ment, or culpable negligence of another, which would be manslaughter at the common law, and which is not excusable or justifiable, or is not declared in this article to be manslaughter in some other degree, shall be deemed manslaughter in the fourth degree," imports into the crimes act the offense of voluntary manslaughter at the common law.

[Ed. Note. For other cases, see Homicide, Dec. Dig. § 32.*]

8. HOMICIDE (§ 35*) VOLUNTARY SLAUGHTER-MALICE AS ELEMENT.

MAN

At the common law the absence of malice was entirely compatible with the intent to kill, which voluntary manslaughter included, and this compatibility continues to characterize the offense as it appears by adoption in the crimes act.

[Ed. Note.--For other cases, see Homicide, Cent. Dig. § 56; Dec. Dig. § 35.*]

9. HOMICIDE (§ 351*)-ASSAULT WITH INTENT ΤΟ COMMIT MANSLAUGHTER STATUTORY PROVISIONS.

-

11. INDICTMENT AND INFORMATION (§ 189*) – CONVICTION OF LESSER OFFENSE.

A person charged with an assault on purpose. of malice aforethought and with intent to kill, under section 38 of the Crimes Act (Gen. St. 1909, § 2526), may be convicted of an assault with intent to commit manslaughter, under

[Ed. Note.-For other cases, see Indictment and Information, Cent. Dig. $$ 582-595; Dec. Dig. § 189.*]

Appeal from District Court, Jackson County; Oscar Raines, Judge.

J. W. Murray was convicted of assault with intent to commit manslaughter on a charge of assault with intent to kill, and he appeals. Affirmed.

J. K. Codding, Charles Hayden, and Guy L. Hursh, for appellant. F. S. Jackson, Atty. Gen., Chas. D. Shukers, M. A. Bender, and Crane & Woodburn Bros., for the State.

BURCH, J. The appellant was charged with assaulting and shooting Bert Graham on purpose, with malice aforethought and with intent to kill, under section 38 of the Crimes Act (Gen. St. 1909, § 2526). He was convicted of assault with intent to commit manslaughter under section 41 of the crimes act, and appeals. There are 97 assignments of error, few of which are worthy of notice.

The appellant, who is a physician, became suspicious of his wife. He went away leaving her under the impression that he would be gone several days, came home the same night, saw Graham enter the house by the kitchen door, rushed in, but was unable to effect a capture. His wife confessed in detail to a long siege Graham had made of her affections and her chastity which, however, she had not surrendered. The appellant suffered the most poignant mental distress throughout the night, in the course of which The next Section 41 of the Crimes Act (Gen. St. he drank considerable whisky. 1909, § 2529), which provides that "every per-morning he went to his office, but could not son who shall be convicted of an assault with free his mind of the night's occurrences. an intent to commit any robbery, rape, burglary, Graham was a liveryman who made it a manslaughter, or other felony, the punishment for which assault is not herein before prescribed, practice to meet incoming trains. Leaving shall be punished by confinement and hard labor his office and taking a revolver with him, not exceeding five years, or by imprisonment in appellant went to the Rock Island Depot, the county jail not less than six months," creates the statutory offense of "assault with in- where a number of persons were waiting for tent to commit manslaughter." As applied to the arrival of a south-bound train. Seeing manslaughter at the common law, this section | Graham appellant began shooting. Graham For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

seized a bystander whom he attempted to | Graham was possessed of a licentious charhold between himself and appellant. Appel-acter. He said he had received information lant called to the bystander two or three from Graham personally, and from others, times to get out of the way, and in the respecting licentious conduct on the part of meantime refrained from shooting. Graham Graham with women other than appellant's and the bystander struggled together and wife, and he described fully the effect this fell to the ground. Finally Graham ran; information had upon his mind, in connecappellant shooting at him and calling to tion with the events of the night before the him to stop. Altogether appellant fired four shooting. When he was asked to give the shots, one of which caused a flesh wound in details of what Graham told him an objecGraham's arm. The defense to the action tion was interposed and sustained. The was that appellant acted under the influence ruling was clearly correct. The testimony of an insane and uncontrollable impulse, he was allowed to give accounted fully for which relieved him of criminal responsibility. the state of his mind, the only matter at isThe state's evidence was quite brief and consisted of the testimony of several witnesses who saw the encounter and of the doctor who dressed Graham's arm. Graham's name was indorsed on the information as a witness, but he was not called. A motion by appellant to require the state to examine Graham was properly overruled. Every fact and circumstance necessary to establish the charges of the information was presented, and whatever the rule may be in some states it is not the law in this state that all witnesses whose names appear on the information must be called.

sue. It was enough, under the circumstances, that he possessed definite information from a reliable source that Graham was a seducer of women. To have gone further would have introduced a brood of collateral issues wholly foreign to the one under investigation. An offer to show by a woman that Graham had attempted to seduce her was properly excluded for the same reason.

The position of the state was that appellant was altogether too deliberate, self-controlled, and discriminating in his shooting to be under the influence of an insane passion, and in order to discredit appellant's account of what shattered his mental integrity the state attempted to create a suspicion of an alibi for Graham. Appellant and his wife testified that Graham came at a certain time of the night. Appellant said the moon was shining and he was corroborated by other testimony. In rebuttal the state offered in evidence an almanac showing the time the moon set. The almanac stated that its calculations were given in solar time. The almanac was properly admitted in evidence, but it is said the difference between solar time and the standard time in general use was not explained to the jury. The matter was one of common knowledge, and the appellant might have explained it to the jury himself, even in the argument of the case, had he thought about it at the trial.

The appellant placed his wife, Rebecca Murray, on the witness stand in his defense. She gave a complete history of her relations with Graham, and of the occurrences of the night before the shooting, including the story she told her husband, and its effect upon his mind and conduct. There are numerous assignments of error relating to her examination and cross-examination which seem quite trivial. For example: One evening while appellant was in Texas, Graham met Mrs. Murray on the street and asked to call that night. She said "Oh, I'm scared to." He said he thought it would be all right. She went home, and after reflecting on the matter made up her mind the meeting ought not to occur. Her testimony was that she thought "he must not come here. This must not happen. I must do something to stop it." The witnesses, Isaac Mulford and Effie Therefore she ordered a livery team and Mulford, gave accounts of Graham's wheredrove to her brother's in the country. After abouts until after 10 o'clock of the night all this she was asked why she went to her before the shooting. On cross-examination brother's that night. An objection to the Mulford was asked concerning a subsequent question was sustained, and it is now argued conversation he had with Ellen Brewer. He that the verdict and judgment ought to be admitted having the conversation and adoverturned because of the ruling. Again: mitted he might have said he saw Graham She testified to salacious suggestions Graham that night and might have talked about sitmade to her on a certain occasion. She was ting on the porch at his home that night, asked if she assented to them. An objection but he would not declare he did so. Ellen was properly sustained because the question Brewer was called by appellant and asked to to be tried was the state of appellant's mind, state all she remembered of the conversaand not her chastity. Afterwards she testi- tion with Mulford, which she did. Appelfied fully to the fact that she had never lant then undertook to cross-examine her by yielded to Graham's advances. Yet, appel- means of leading questions, the answers to lant harks back to this question, irrelevant which would not have impeached Mulford, when asked and utterly immaterial now, and in view of the nature of his answers. asks that the verdict and judgment be over-jections to such questions were properly susturned because it was not answered. tained under well-known rules.

Appellant was a witness in his own behalf.

Ob

In the course of her testimony for appel

occasion she met Graham, by appointment, | slaughter, under section 41 of the crimes act, in North Topeka. Proceeding, she said: as charged in the amended information." "In the conversation that followed he asked Section 41 of the crimes act reads as follows: me why I did not go to South Dakota and "Every person who shall be convicted of an stay six months. I told him I had no rea- assault with an intent to commit any robson to do that, and he said he could give me bery, rape, burglary, manslaughter, or other a reason to do so. He stated that he knew | felony, the punishment for which assault is some reasons and things about the doctor not herein before prescribed, shall be punishthat would change my mind. I do not re-ed by confinement and hard labor not exceed member whether I said, 'Don't tell me', or ing five years, or by imprisonment in the 'Do tell me.' He said: 'I do not know county jail not less than six months." Gen. whether I should tell you, as it would be St. 1909, § 2529. betraying the doctor, but I will tell you anyway.' I am telling it all-between the doctor and the Fultz's.' That the doctor had had trouble with Fultz's wife and had to pay over some money, and that he and Fenske had fixed-had helped to fix it up, that Fenske had fixed it up; that he was a go-between."

This section of the crimes act was applied to the evidence by means of the following instruction: "15. If you find from the evidence in this case that defendant at the time and place charged in the amended information, unlawfully assaulted and wounded said Bert Graham, with a deadly weapon, as charged in the amended information, and further find that said assault was made upon reasonable provocation, in heat of blood, but without malice and without legal excuse, and with intent to kill, then you will be justified in finding defendant guilty of an assault with intent to commit manslaughter."

In order that the conviction may be sustained it must be held that there may be an assault with a deadly weapon, upon reasonable provocation, in heat of blood, without malice and without legal excuse, and with an intent to kill; and it must be held that such an act constitutes an assault with intent to commit manslaughter, within the meaning of section 41 of the crimes act. Appellant argues that such a ruling would involve an impossibility of fact and of law. The court is of a contrary opinion.

Appellant seemed to feel the need of clearing up the Fultz matter before the jury, and so volunteered the testimony that since his marriage he had not committed adultery with any woman whomsoever. Not content with this he placed Fenske on the stand and caused him to tell all about the settlement of the Fultz affair, and Fenske produced and read to the jury the Fultz receipt for the money appellant had paid to repress scandal. The state, of course, walked briskly in at the open door and proved by Mrs. Fultz that appellant had sexual intercourse with her in his office, whither she had gone for medical treatment, and that she did not understand the terms of the receipt for money which she had signed. Many errors are assigned relating to the trial of this separate and independent Fultz case. None of them, if any In the preparation of the crimes act the were committed, bore any sort of relation to Legislature segregated certain homicides, the only matter in dispute, the state of ap- committed under specified conditions, and pellant's mind when he was engaged in shoot-called them justifiable. It did the same with ing at Graham, and they need not be notic- certain other homicides, committed under ed further. specified conditions, and called them excusaDr. Roby, a witness for the state in rebut-ble. By this means certain specific killings are tal, testified that he heard appellant's test1mony. He was then asked as a medical expert for an opinion respecting appellant's sanity, "based wholly upon his testimony." It is argued that the witness was left free to weigh the truth or falsity of appellant's testimony, and to accept or reject such portions of it as he saw fit. The natural import of the question is that the witness should accept the testimony just as the appellant gave it and make it the foundation of the witness' opinion. Other objections to medical expert testimony which was given are unsubstantial, and other assignments of error respecting the admission and exclusion of evidence are without merit.

exempt from punishment. Conceiving that there may be other killings which ought not to be punished the Legislature then exempted all other homicides which were justifiable or excusable under the common law. Crimes Act, § 11 (Gen. St. 1909, § 2499). While all these exemptions are statutory they may, for convenience, be classified as statutory and common-law exemptions.

The legislative intention was to punish all homicides which are not justifiable or excusable, either under the statute or under the common law. In providing a scheme of punishments the same method was adopted as in the case of exemptions. A homicide committed under certain specifically enumerated conditions was made punishable as murder in the first degree. Another kind of killing under certain other specific conditions was made punishable as murder in the second degree. Various kinds of homicides, the eleof which are all named, constitute

One matter of importance, arising upon the instructions, is presented. The verdict reads as follows: "We, the jury impaneled and sworn in the above-entitled case, do upon our oath find the defendant, J. W. Murray, guilty of an assault with intent to commit man- ments

out malice, and must have been unlawful; that is, without legal justification or excuse. 2 Cooley's Blackstone, 191. This is the precise state of facts submitted to the jury in the fifteenth instruction. The crimes act may be searched in vain for any statutory degree of murder or manslaughter under which such

manslaughter in the first degree, and so with kill." The compilation called General Statmanslaughter in the second, third, and fourth utes of 1897, referred to in this opinion, is degrees. Understanding very well that it the Webb edition. Section 40 of chapter 100 had not, in two degrees of murder and four of its classification is section 41 of the crimes degrees of manslaughter, provided for all act, and section 17 is section 17 of the crimes punishable killings, the Legislature then un- act. dertook by section 27 of the crimes act to There are no statutory manslaughters incover all those which had not been specifical- volving an intent to kill, except those rely provided for. That section reads as fol- ferred to in sections 14, 15, and 17. None of lows: "Every other killing of a human be- them will fit all the facts set forth in the ing, by the act, procurement, or culpable fifteenth instruction, and if there be a mannegligence of another, which would be man- slaughter involving the elements there enuslaughter at the common law, and which is merated it must be found in the common-law not excusable or justifiable, or is not declar- group. Turning to the common law, one of ed in this article to be manslaughter in some the established classes of manslaughter, that other degree, shall be deemed manslaughter termed "voluntary," is found to involve the in the fourth degree." Gen. St. 1909, § 2515. intent to kill. Besides this, in the case of It may be that the statement preceding the voluntary manslaughter at common law the quotation is too broad, and that if there killing must have been done in the heat of should be a homicide of some kind not cover-passion, upon sufficient provocation and withed by the statute which would be murder and not manslaughter at the common law, it could not be punished; but it is possible that in such a case the manifest purpose of the section to include all homicide not justifiable or excusable and not otherwise specifically covered would control the phraseology. By section 27 common-law manslaughters a killing is punishable. Here, then, is a comnot already provided for by the crimes act are imported into the act and so become statutory crimes, but here again, for convenience of reference, the terms "statutory" and "common-law" may be applied as manslaughters fall without or within section 27. Turning to the statutory manslaughters it is discovered that several of them include an intent to kill, the willful killing of an unborn quick child It is argued that an intent to kill, where by an injury to the mother, which would be the killing is not justifiable or excusable, is murder if her death should result (section an intent to do a wrongful act, and that, un14); the administration of medicines, drugs, der the definition of malice as the state of or other substances to a woman quick with mind denoted by the intentional doing of a child, with the intent to destroy the child, if wrongful act, it is impossible that there the death of the child or of the mother en- should be an intent to kill and no malice. sue (section 15); the unnecessary killing of The supposed difficulty thus presented is one another, either while resisting an attempt by of words only, and arises from an attempt the other to commit a felony or other unlaw- to make a convenient expression, good for ful act, or after the attempt has failed (sec-all general purposes, cover a particular case tion 17). In these cases there may be an assault with intent to commit statutory manslaughter, involving an intent to kill.

In the case of State v. Tankersley, 57 Pac. 965 (not reported in full in 60 Kan. 859) the opinion reads: "This is an appeal from a judgment of conviction of an assault with an intent to commit manslaughter in the second degree. The information charged an assault with intent to murder. One of the claims of error is that a conviction of assault with intent to commit manslaughter is a legal impossibility, because manslaughter is involuntary killing, not killing by design. To this it is sufficient to say that assaults with intent to commit manslaughter are among the offenses defined by the law (Gen. St. 1897, c. 100, § 40), and under section 17 of this chapter, which defines one of the instances of manslaughter in the second degree, it is entirely possible to

mon-law manslaughter which the Legislature must have intended to cover by section 27. If the intent to kill should fail of accomplishment and death should not ensue, there remains an assault with an intent to do that which, completed, is manslaughter, and which therefore must be punishable under section 41.

which the conumon law has always carefully discriminated. At the common law homicides were of two classes only, those done with malice and called murder, and those done without malice and called manslaughter. This malice, or its absence, was inferred from facts and circumstances. Given a killing done voluntarily, that is, with the intent to kill, but in hot blood and upon some sudden and sufliciently violent provocation, and the inference of malice was not drawn. Going beyond these facts, there might be malice, as, if the provocation were resented in a brutal and ferocious manner, indicating that the conduct exhibited was the dictate of a wicked, depraved, or malignant heart. But, without circumstances of some kind showing such malevolence, due provocation and hot blood alleviated the crime into the nonmalicious one of manslaughter. 4 Cooley's Black